BAEC Bulletin | September/October 2022 | 19
the deed was not void ab initio because it was not a forgery nor was it obtained by false pretenses. At most the deed was voidable, and the defendants as bona fide purchasers for value were protected against rescission. The defendant-purchasers were represented on the appeal by a title company, and their purchase was upheld. But, the entire matter would have been less heartburn-producing if the executor had obtained the required court approval for the sale, or if the defendants has insisted that the Plaintiff join in the deed, rather than relying upon text messages and e-mails by Plaintiff’s attorneys, apparently agreeing to the sale. Matter of Reich , 2022 NY Slip Op 04446 (4th Dept. 2022) This estate litigation raised interesting statute of limitations issues. Decedent and his sons formed a corporation in 2011. Decedent removed funds from the corporation, and later acknowledged that some of those funds belonged to his sons. Decedent died in 2018, without having returned the funds to his sons. Decedent left a Will leaving his entire estate to his wife. In 2019 the sons filed claims against the estate for unjust enrichment and for money had and received. The executor moved to dismiss, asserting that the claims were time-barred. The Erie County Surrogate determined that the claims were subject to a six-year statute of limitations, and that the decedent’s acknowledgment that he owed his sons the money in sworn deposition testimony in 2014, re-started the statute of limitations, so that the claims were timely filed. The Appellate Division unanimously reversed and dismissed the claims. The executor argued that the claims did not state a claim for unjust enrichment. The Fourth Department rejected that argument, but held that even if the claims have a six-year statute of limitations, the statute starts to run upon the occurrence of the wrongful act giving rise to a duty of restitution. The claim accrued when the decedent removed the funds in 2011. The claim for money had and received also had a six-year statute of limitations, which accrued on the date the decedent withdrew the money. That claim was also time-barred when the sons filed their claims in 2019. Thus, the Court held, the burden then shifted to the sons to prove that there was any question of fact that tolled the statute of limitations or made it otherwise in applicable. The tolling provision upon which the Surrogate relied is General Obligations Law §17-101, which in pertinent part provides: “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules.” The Court noted that the sons did not allege any contract with the decedent. Rather, they alleged claims sounding in “quasi- contract”, which the Court said is not a contract at all. The quoted statute only applies if there is competent evidence of a new or existing contract, which there was not in this case.
Alante v. Maika , 206 A.D.3d 1563 (4th Dept., 2022) This 3-2 decision raises some troubling issues about attorney-in- fact conflict of interest. In 2010 Decedent executed a Power of Attorney authorizing five of his 12 children to act on his behalf with respect to various transactions, including real estate transactions, if a majority of his agents agreed to the transaction. His son, Philip, was one of the five agents named in the Power of Attorney. The Power of Attorney did not authorize the agents to make major gifts on Decedent’s behalf. In March 2017 Philip and two siblings, acting in their capacity as attorneys-in-fact, conveyed Decedent’s home to Philip and another sibling as joint tenants, retaining in decedent a life estate. Philip and the other sibling who received the home were the primary caregivers for decedent, who suffered from severe disabilities in the years preceding his death in July 2017. Following Decedent’s death, Petitioner was appointed administrator of the estate, and commenced a proceeding in Supreme Court alleging that the transfer was improper, and that the property should be delivered to the estate. Respondents moved to dismiss. The trial court denied their motion, and sua sponte granted summary judgment on the Petition and set aside the deed. The trial court concluded the transfer was an improper gift, relying on the presumption that where parties are related, services were rendered in consideration of love and affection, without expectation of payment. However, the majority of the Appellate Division found clear, convincing and satisfactory evidence that there was an agreement that the services should be compensated. The two agents who also participated in the deed gave affidavits in which each said that the transfer was intended to compensate respondents for their continued care of Decedent and that respondents’ services allowed Decedent to remain in his home. The Court held that rebutted the presumption and established as a matter of law that the transfer of property was not a gift The two dissenting Justices took the position that when the vote of the attorney-in-fact child, who stands to receive the alleged compensation, is necessary to approve the transfer, that child must rebut the presumption with evidence of the parent’s intent to transfer the property as compensation. •
Powered by FlippingBook